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Friday, December 14, 2007

Emoting on waterboarding isn't enough

It seems to be that much of the debate about the use of waterboarding on suspected terrorists involves posturing rather than a willingness to address the tough issues presented by using extremely aggressive interrogation techniques to attempt to avoid extremely harmful events. Here's where I think the deabate gets off the rails.

Does it matter whether waterboarding can be called torture? Let's put aside whether it fals within the statutory of torture so we can focus on the question of what the law ought to be. I think it certainly can be called torture, although it is still substantially different from forms of torture that inflict bodily harm. It does not result in physical injury (although I suspect that there is always a risk involved in inducing extreme stress), but it also seems to be extremely unpleasant and terrifying. Call it torture, but does that answer the questions we are presented with? I suggest that it does not for the following reason.

Few people really believe that torture is never justified. Imagine that we have uncovered a plot to detonate an old Soviet nuke somewhere in New York. We know that the weapon is in country but we don't know where it is or when it will be detonated. We have captured one of the plotters but have been unable to crack him through traditional interrogation techniques.

Should he be waterboarded? It won't kill him. It won't injure him. It might save millions of lives.

You can't duck this by saying that torture "doesn't work." Experts who advocate waterboarding in this type of situation are not sadists. There is a difference between waterboarding to extract a confession and doing it to obtain objectively verifiable information to prevent an attack.

Unless you can say that you would allow New York to blow up rather than waterboard, then you cannot advocate a complete ban on the technique.

If you are willing to let New York go, I think you are in a very small minority. The fact that leading Congressional Democrats, including Nancy Pelosi, were aware of waterboarding and raised no objection until its use became public and the political winds had shifted underscores this.

(Incidentally, can Pelosi's conduct on this issue be described as anything other than reprehensible? How can you fail to raise an objection to something and, then when it becomes public (and is no longer being used), act as if those who did what you wanted them to do were immoral and criminal?)

I don't think that you can avoid answering by saying that this hypothetical could never happen. The former CIA agent who has said that Abu Zubadayh was waterboarded says that the information that was obtained disrupted "maybe dozens of attacks."

But I agree that it will be a rare circumstance and suggest that those who advocate waterboarding somethimes miss the following.

Permitting waterboarding is dangerous and requires stringent limitations. Although waterboarding may not cause permanent injury, it does involve the infliction of extreme discomfort and panic and risks opening the door to other more damaging forms of interrogation. (I am less moved by the argument that it subjects American captives to harsh interrogation because I think they would be anyway.) It should never be used to extract confessions or uncorroborated accusations. It seems to be that it ought to be used only to prevent serious attacks that we have reason to believe (from other sources) may be in process and only upon Presidential approval with Congressional disclosure. It should not be used in circumstances when the Geneva Conventions apply.

If you accept those guidelines (or can think of better ones that would still acommodate my hypothetical), then isn't the prohibition passed by the House a bad bill that ought to be vetoed?

75 comments:

The problem, as it seems to me, is that there is no evidence that waterboarding is or has been effective--whether we define it as torture or not.

No one has been able to demonstrate that a single life has been saved or a single attack prevented through the use of the technique, while evidence mounts that suspects subjected to it eventually just make stuff up to get out of more of it.

This is not "24" where blowing the kneecaps off the bad guy means we can save Los Angeles. This is the real world where torture doesn't work and instead just horks off an even wider swath of the world ready to hate us.

Terrorism only succeeds when it changes who we are. We start torturing, and, well . . .

But there is evidence. John Kiriakou, the retired CIA agent who was involved in the interrogation, says that waterboarding broke Zubaydah and he revealed information that disrupted dozens of attacks.

I agree that people will oonfess to anything so that waterboarding should never be used to get people to admit guilt.

But what if we are asking people for objectively verifiable information? According to Kiriakou (who seems very conflicted on the issue) the answers that Zubudayh gave turned out to be good information.

So I don't think we get to avoid my hypothetical by saying that it never happens. I agree that the proper use of this technique is going to be extremely rare (and, as far as we know, it was rarely used and is no longer used), but can we really say that it should never be used?

I agree with you that terrorism works if it changes who we are, but I think its naive to think that repeated terrorist attacks won't change who we are. Do you really think that a broad conception of civil liberties would survive the destruction of a major american city?

Or:Which brings us back to the unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

Fact is, Kiriakou's account doesn't jibe with other such accounts. No one can point to any particular real plot Zubaydah divulged, and no one has been arrested or tried on his word except Jose ("He will communicate in code by blinking") Padilla.

And even Kiriakou himself says the US should not be waterboarding or torturing.

I am not sure that you have any reason to credit Suskind's recount of anonymous sources to Kiriakou's account. The fact that no one has released classified information regarding potential attacks or brought criminal charges is not that persuasive. I wouldn't expect either to be particularly likely.

I'll concede it is possible that Kiriakou is wrong, but I don't think you can dismiss my hypothetical by saying that it could not happen. That's just too easy.

Let's say we restrict waterboarding to cases where we have information from other sources indicating that an attack is imminent and now have someone in custody who is in a position to know the details. Nothing else has worked.

Rick, whether waterboarding has been effective "enough", is specious and unrelated to the question of whether it is TORTURE or not.To wit, Jay et al, will NEVER acknowledge a rough technique as being "effective", as long as Jay, et al, are "invested" in discrediting President Bush, and as such are "invested" in our countries "discredit or failure" in terms of political discourse.It's far beyond obvious. Jay Bullock, will NEVER, accept any victories by our Country, so long as HIS, party/friends, are not responsible for said victories.That is pretty much the emblematic definition of being a traitor,(yes I am questioning Jay's patiotism or lack thereof).Rick, I'm confident that you agree, but as usual, I recognize that you are above most of this rancor.I'll end with this.Jay Bullock sais the following:((No one has been able to demonstrate that a single life has been saved or a single attack prevented through the use of the technique}}Rick, if you do not recognize how far Jay Bullock and his like, will go to deny what is obvious, then you too are nuts.

Rick Esenberg is my Civil Procedure professor at Marquette. He is an intelligent man, but good Lord, he is insane. This blog is absolutely ridiculous. I hope Barack Obama comes to Milwaukee solely to kick Rick's ass. Actually, Hillary could kick it too, and that would be much funnier.

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About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.